Joan Burton (Dublin West, Labour) | Oireachtas source

Under Article 20 of the Treaty on the Functioning of the European Union, every citizen has the right to move and reside freely within the territories of the member states. Those rights can be exercised in accordance with the conditions and limits defined by the treaties and by the measures adopted thereunder. The conditions governing free movement and the right of residence are set out in EU Directive No. 38 of 2004. Freedom of movement among member states is probably one of the most important and positive aspects of the EU for Irish people.

Under the directive, every EU citizen has an unqualified right of residence in another member state for up to 3 months. A right of residence for longer than 3 months is dependent on being employed or self-employed and holding comprehensive sickness insurance. If such people are not active in the labour market they must have sufficient resources for themselves and their families so as not to become an unreasonable burden on the social assistance system of the host member state. The Irish system is built on the contributory principle and this is the case in many of the better EU welfare systems. In the case in question, the person concerned is a migrant who is not in employment but argued that, in line with the equality provisions that co-ordinate social security systems across the EU, she was entitled to a social assistance payment on the same basis as citizens of the host country in the same position.

In its judgement the court found that to accept that persons who do not have a right of residence under EU Directive No. 38 of 2004 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host member state would run counter to an objective of the directive, set out in recital 10 in its preamble. This objective aims to prevent EU citizens who are nationals of other member states from becoming an unreasonable burden on the social assistance system of the host member state.

The judgement of the court has not introduced any new restrictions on free movement but has clarified EU law in this area. Accordingly, the free movement rights of disabled people, or other migrant groups, are not affected by the judgement. The judgment merely confirms what was understood to be the EU legal position.

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